Provident Bank v. Beck, C-1-96-510.

• Decision Date: 22 November 1996
• Docket Number: No. C-1-96-510.,C-1-96-510.
• Citation: 952 F.Supp. 539
• Parties: The PROVIDENT BANK, Plaintiff, v. Franklin Bernard BECK, Defendant.
• Court: U.S. District Court — Southern District of Ohio

952 F.Supp. 539

The PROVIDENT BANK, Plaintiff, v. Franklin Bernard BECK, Defendant.

No. C-1-96-510.

United States District Court, S.D. Ohio, Western Division.

November 22, 1996.

Frank J. Veneziano, John R. Wirthlin, Legal Department Provident Bank, Cincinnati, OH, for plaintiff.

Paul Joseph Vesper, Covington, KY, for defendant.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Plaintiff's memorandum in opposition to Defendant's notice of removal (doc. 4). Defendant did not reply.

Plaintiff, The Provident Bank, filed this action in the Court of Common Pleas in Hamilton County, Ohio, on May 13, 1996. Defendant, Franklin Bernard Beck, filed a notice of removal on May 17, 1996, pursuant to 28 U.S.C. § 1441, on the basis of diversity jurisdiction. In the Complaint, Plaintiff alleges that Defendant owes a sum of money in the amount of $96,085.02 pursuant to a promissory note and an Unconditional Guaranty Agreement. Plaintiff asserts in the Complaint that it is a "banking association duly organized and existing under the laws of the State of Ohio, having an office in Cincinnati, Hamilton County, Ohio." In the notice of removal, Defendant asserts he is a resident and citizen of Kentucky.

Plaintiff filed a memorandum in opposition to Defendant's notice of removal. We construe this memorandum as a motion for remand.

On a motion for remand, the question is whether the district court lacks subject matter jurisdiction; in other words, the issue is whether the case was properly removed in the first instance. 28 U.S.C. § 1447(c); 14A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3739, at 580 (2d ed. 1985) (the court is limited to "the question of its authority to hear the case pursuant to the removal statute.").

It appears from the face of the Complaint and the notice of removal that diversity jurisdiction exists. Plaintiff argues that Defendant waived his right to remove based on the language of the Unconditional Guaranty which is the subject of the Complaint.

The Unconditional Guaranty signed by Defendant provides in relevant part,

The undersigned hereby designate(s) all courts of record sitting in Cincinnati, Ohio and having jurisdiction over the subject matter, state and federal, as forums where any action, suit or proceeding in respect of or arising from or out of this guaranty, its making, validity or performance, may be prosecuted as to all parties, their successors and assigns, and by the foregoing designation the undersigned consent(s) to the jurisdiction and venue of such courts.

According to the Sixth Circuit, "[a]lthough the right to remove can be waived, the case law makes it clear that such waiver must be clear and unequivocal." Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 195 (6th Cir.1990). "[A]ny claimed waiver of the right of removal stemming from contractual language must be explicit. It is easy enough to provide that, if a state court is selected as a forum, that no right of removal attaches. There is no reason why courts should have to wrestle with these interpretative...